Should data scientists be in the business of fingering Americans for crimes they could commit, someday? Last month, a group of federal lawmakers asked the Department of Justice to stop funding such programs—at least until safeguards can be built in. It's just the latest battle over a controversial field of law enforcement that seeks to peer into the future to fight crime.
"We write to urge you to halt all Department of Justice (DOJ) grants for predictive policing systems until the DOJ can ensure that grant recipients will not use such systems in ways that have a discriminatory impact," reads a January letter to Attorney General Merrick Garland from U.S. Sen. Ron Wyden (D–Ore.) and Rep. Yvette Clarke (D–N.Y.), joined by Senators Jeff Merkley (D–Ore.), Alex Padilla, (D–Calif.), Peter Welch (D–Vt.), John Fetterman, (D–Penn.), and Ed Markey (D–Mass.). "Mounting evidence indicates that predictive policing technologies do not reduce crime. Instead, they worsen the unequal treatment of Americans of color by law enforcement."
The letter emphasizes worries about racial discrimination, but it also raises concerns about accuracy and civil liberties that, since day one, have dogged schemes to address crimes that haven't yet occurred.
Criminal justice theorists have long dreamed of stopping crimes before they happen. Crimes prevented mean no victims, costs, or perpetrators to punish. That's led to proposals for welfare and education programs intended to deter kids from becoming predators. It's also inspired "predictive policing" efforts that assume crunching numbers can tell you who is prone to prey on others. It's an intriguing idea, if you ignore the dangers of targeting people for what they might do in the future.
"For years, businesses have used data analysis to anticipate market conditions or industry trends and drive sales strategies," Beth Pearsall wrote in the Department of Justice's NIJ Journal in 2010. "Police can use a similar data analysis to help make their work more efficient. The idea is being called 'predictive policing,' and some in the field believe it has the potential to transform law enforcement by enabling police to anticipate and prevent crime instead of simply responding to it."
Interesting. But marketers targeting neighborhoods for home warranty pitches only annoy people when they're wrong; policing efforts have much higher stakes when they're flawed or malicious.
"The accuracy of predictive policing programs depends on the accuracy of the information they are fed," Reason's Ronald Bailey noted in 2012. "We should always keep in mind that any new technology that helps the police to better protect citizens can also be used to better oppress them."
People worried about the dangers of predictive policing often reference the 2002 movie Minority Report, in which a science-fiction take on the practice is abused to implicate innocent people. Recent years, though, have delivered real-life cautionary tales about misusing data science to torment people for crimes they haven't committed.
"First the Sheriff's Office generates lists of people it considers likely to break the law, based on arrest histories, unspecified intelligence and arbitrary decisions by police analysts," the Tampa Bay Times reported in 2020 of Pasco County, Florida's predictive policing program. "Then it sends deputies to find and interrogate anyone whose name appears, often without probable cause, a search warrant or evidence of a specific crime."
In practice, as a former deputy described the program's treatment of those it targeted: "Make their lives miserable until they move or sue."
Sue they did, with many plaintiffs represented by the Institute for Justice. Last year, with legal costs mounting, the sheriff's office claimed in court documents that it discontinued predictive policing efforts.
A big problem with predictive policing is that it relies heavily on honesty and dispassion in people who create algorithms and enter data. As recent arguments over biases in internet search results and artificial intelligence reveal, the results that come out of a data-driven system are only as good as what goes in.
"One foundational problem with data-driven policing is that it treats information as neutral, ignoring how it can reflect over-policing and historical redlining," the Brennan Center for Justice's Ángel Díaz wrote in 2021. He added that tech vendors dealing with the NYPD's predictive policing program "proposed relying on data such as educational attainment, the availability of public transportation, and the number of health facilities and liquor licenses in a given neighborhood to predict areas of the city where crime was likely to occur."
Are those real predictors of criminal activity? Maybe. Or maybe they're excuses for making people's lives miserable until they move or sue, as happened in Pasco County.
As with so many big ideas with scary potential, impetus for development and implementation comes from government funding and encouragement.
"The National Institute of Justice, the DOJ's research, development and evaluation arm, regularly provides seed money for grants and pilot projects to test out ideas like predictive policing," American University law professor Andrew Guthrie Ferguson commented earlier this month. "It was a National Institute of Justice grant that funded the first predictive policing conference in 2009 that launched the idea that past crime data could be run through an algorithm to predict future criminal risk."
Of course, it's not bad to seek innovation and to look for new tools that could make the public safer. But hopefully, those funding such research want it to make the world a better place, not worse. And when lawmakers asked the Justice Department in 2022 for some documentation on predictive policing, officials admitted they didn't really know how money was being spent, let alone its impact.
"It remains an unanswered [question], for example, to what degree such tools are, or ever have ever been, assessed for compliance with civil rights law," Gizmodo's Dell Cameron wrote at the time.
Hence the letter from Wyden and company. After years of haphazard funding and development, warnings from civil libertarians, and abuses by police, some lawmakers want the federal government to stop funding predictive policing efforts until due diligence is done and safeguards are in place.
You have to wonder if predictive policing programs predicted the field's own current troubles.
The post Lawmakers Want Pause on Federal Funds for Predictive Policing appeared first on Reason.com.
]]>The National Security Agency (NSA) is the latest intelligence agency spying on Americans without a warrant by buying access to their data.
That revelation comes from a letter released last week from Sen. Ron Wyden (D–Ore.) to Director of National Intelligence Avril Haines. "As you know," Wyden wrote, "U.S. intelligence agencies are purchasing personal data about Americans that would require a court order if the government demanded it from communications companies."
Now, Wyden writes, the snoop in question is the NSA, which is "buying Americans' domestic internet metadata." Such information "can reveal which websites they visit and what apps they use," according to a press release from Wyden's office.
Wyden is right that Haines is likely already aware of the practice: A report from the Office of the Director of National Intelligence (ODNI) completed in January 2022 (but only declassified in June 2023) found that the intelligence community "currently acquires a significant amount of [commercially available information] for mission-related purposes," information which "can include credit histories, insurance claims, criminal records, employment histories, incomes, ethnicities, purchase histories, and interests" and "in some cases social media data."
Data brokers collect and package this data for sale. Often this information is purchased by other companies for purposes like advertising, but increasingly, government agencies are purchasing the information for their own purposes: During the COVID-19 pandemic, the Centers for Disease Control and Prevention purchased cellphone location data in order to monitor compliance with lockdown orders; the IRS paid for similar data in an effort to track criminal suspects.
"Until recently, the data broker industry and the intelligence community's (IC) purchase of data from these shady companies has existed in a legal gray area, which was in large part due to the secrecy surrounding the practice," Wyden wrote. "The secrecy around data purchases was amplified because intelligence agencies have sought to keep the American people in the dark."
Wyden says he actually learned the NSA was buying Americans' internet metadata in March 2021, but the agency "refused…to clear the unclassified information for public release" for nearly three years. "It was only after I placed a hold on the nominee to be the NSA director that this information was cleared for release." Wyden includes letters from NSA officials written in December 2023, agreeing to allow the information to be released.
In Carpenter v. United States in 2018, the Supreme Court ruled that it was a violation of the Fourth Amendment for law enforcement to access cellphone location data without a warrant. The 2022 ODNI report noted that under Carpenter, "acquisition of persistent location information (and perhaps other detailed information) concerning one person by law enforcement from communications providers is a Fourth Amendment 'search' that generally requires probable cause." But since "the same type of information on millions of Americans is openly for sale to the general public," intelligence agencies "treat the information as" publicly available and "can purchase it."
Similarly, Under Secretary of Defense for Intelligence and Security Ronald Moultrie advised Wyden that "I am not aware of any requirement in U.S. law or judicial opinion," including Carpenter, that intelligence agencies "obtain a court order in order to acquire, access, or use information, such as [commercially available information], that is equally available for purchase to foreign adversaries, U.S. companies, and private persons as it is to the U.S. Government."
That explanation is cold comfort when, as Wyden's press release noted, spy agencies can "us[e] their credit card to circumvent the Fourth Amendment." The intelligence community previously seemed to understand this, with the 2022 ODNI report noting that while it "cannot willingly blind itself to this information, it must appreciate how unfettered access to [commercially available information] increases its power in ways that may exceed our constitutional traditions or other societal expectations." The collection of such data could also "raise the risk of mission creep," as information "collected for one purpose may be reused for other purposes."
The post NSA Purchases Internet Metadata To Spy on You Without a Warrant appeared first on Reason.com.
]]>"DEA agents were regularly paying for and receiving private customer information." Rather than obtain a warrant for some mailed packages or consumer travel data, Drug Enforcement Administration (DEA) agents paid employees at private companies and other government agencies to simply hand over information. In a March 29 letter, Sens. Ron Wyden (D–Ore.) and Cynthia Lummis (R–Wyo.) asked the Department of Justice (DOJ) to put an end to this practice.
Wyden and Lummis noted that the DEA "has for years paid confidential sources, commonly known as informants, employed by other U.S. government agencies and companies as a means to access data held by those agencies and companies rather than using compulsory legal processes, such as an administrative subpoena or warrant, to request that data."
This practice was first revealed in 2014, with more information coming out in a 2016 Office of the Inspector General (OIG) audit. That audit revealed that agents "were paying travel and parcel industry employees millions of dollars to covertly obtain Americans' data, which the DEA could have readily obtained through a subpoena or court order," noted Wyden and Lummis.
Following these revelations, the DEA said it had banned agents from paying Amtrak employees, employees of other quasi-government entities, and government employees for private information.
But "the Congressional Research Service informed Senator Wyden's office that DEA officials said the agency does not apply the prohibition on payment for information obtained in the course and scope of a source's employment to employees of private companies," Wyden and Lummis wrote:
The OIG found that DEA agents were regularly paying for and receiving private customer information from these sources. One agent reportedly received daily passenger manifests for buses traveling to and from a specific station or manifests of all passengers who purchased bus fare in cash. Another agent received passenger itineraries, ticket and baggage information, origin and departure airports, connecting flights, dates of birth and seat numbers from an airline industry source. The OIG found that agents would establish confidential sources "solely because the sources have access to private company databases and facilities."
The OIG also revealed that one DEA Special Agent recruited a parcel industry source who had unique administrative privileges to open packages en route to their destination. This source would search packages and report to the agent when packages contained currency. At the agent's request, the source would rebox the package to be sent to the agent. While the government would normally need a warrant to open a package sent by the Postal Service, these packages in the care of a private package delivery company were inspected and shared with the DEA with no judicial oversight.
Wyden and Lummis want the DOJ to explicitly ban such practices not only at the DEA but at its other component agencies, including the FBI, the U.S. Marshals Service, the Bureau of Alcohol, Tobacco, Firearms, and Explosives, and others. They also asked the department to provide unclassified answers to a number of questions about such practices by May 8.
"Over the past several years, law enforcement agencies like the DEA, [Customs and Border Protection], and the FBI, as well as sections of the military, have been buying data from data brokers," reports Vice. "This has included smartphone location data collected by ordinary apps."
A trove of Department of Homeland Security (DHS) records examined by the American Civil Liberties Union (ACLU) recently revealed that DHS agents spent millions purchasing cellphone location data. Such agents are "sidestepping our Fourth Amendment right against unreasonable government searches and seizures," commented the ACLU.
Senate Republicans spar over TikTok, free speech. Sen. Josh Hawley (R–Mo.) yesterday tried to force a vote on his bill to ban TikTok—one of two competing measures aimed at the video app and its parent company, ByteDance. But Hawley "was blocked by a fellow Republican as lawmakers in both chambers are still trying to figure out what action, if any, is appropriate against the social media app," reports the New York Post.
Repeating the recent favorite hack trope that TikTok is "digital fentanyl," Hawley said that a ban would send "the message to Communist China that you cannot buy us."
"Speech is protected whether you like it or not," pushed back Sen. Rand Paul (R–Ky.).
When Hawley tried to suggest that banning TikTok was OK because there's no First Amendment "right to espionage," Paul told Hawley he was "unlikely to take First Amendment advice from someone who believes that the First Amendment doesn't protect the Communist Party…We should beware of people who peddle fear. We should beware of people who peddle half truths."
Americans want to cut government spending…but can't agree on what to cut:
Out of 16 things, the only one that even a majority agree we're spending too much on is foreign aid.
People like cutting spending in theory. They do not like it when you cut specific things -- and especially the big stuff that could actually put a dent in the deficit. pic.twitter.com/FYmiXvds1l
— Aaron Blake (@AaronBlake) March 29, 2023
• The Senate successfully voted to finally end two authorizations for the use of military force in Iraq:
PASSED: S.316, to repeal the authorizations for use of military force against Iraq
By a vote of 66-30.
— U.S. Senate Majority Floor Updates (@DSenFloor) March 29, 2023
• "The Biden administration is fighting a Democratic-led effort to make abortion pills more accessible even as it simultaneously opposes a GOP-led effort to ban the drugs nationwide," notes Politico.
• The Food and Drug Administration (FDA) has approved over-the-counter sales of the opioid overdose antidote Narcan.
• The FDA is meeting in May to discuss approval of an over-the-counter birth control pill.
• Fewer than half of Senate Democrats voted with Republicans to officially end the COVID-19 national emergency.
• Headline of the week? "Winnie The Pooh Escapes Copyright Hell, Grabs Some Weapons, And Immediately Gets Kicked Out Of Hong Kong."
• North Carolina will no longer require people to get a permit from a local sheriff before buying a gun.
• "Seven California Highway Patrol officers and a nurse have been charged with involuntary manslaughter nearly three years after the in-custody death" of Edward Bronstein, "who was pulled over for a traffic stop in Los Angeles County and repeatedly said 'I can't breathe' before losing consciousness," reports ABC News.
• There are always new drugs to drug war, sigh.
• Immigration to America's most populous counties hasn't been able to stanch the flow of people from urban centers "to suburbs, exurbs and other regions of the country," notes The New York Times.
• Blame regulations, not foreign buyers, for America's high housing costs, writes Reason's Christian Britschgi.
The post Senators Ask DEA To Stop Buying Its Way Around Civil Liberties appeared first on Reason.com.
]]>The Good: We have divided government. Since Democrats no longer control Congress, they can't bankrupt America quite so fast!
The Bad: Prediction markets, which I touted as the best guide to elections, didn't do so well. Yes, they correctly said Republicans would take the House, but they'd also predicted Republicans would take the Senate. Polls and statistical modelers like Nate Silver did a bit better this time. They also said Republicans would win both, but they gave them only a slight edge.
As I write this Wednesday morning, Republicans have (according to ElectionBettingOdds.com, the site Maxim Lott created that tracks election betting around the world) a 19 percent chance of winning the Senate.
Nineteen percent isn't zero; they could still win the Senate, but Republicans don't have the 60 to 70 percent chance that bettors gave them in recent weeks.
The Good: Bettors at least adjust their predictions quickly.
Tuesday night, while clods on CBS still said "Democrats and Republicans battle for control of the House," those of us who follow the betting already knew that Republicans would win the House.
Historically, bettors have a great track record. Across 730 candidate chances we've tracked, when something is expected to happen 70 percent of the time, it actually happens about 70 percent of the time.
That's because people with money on the line try harder than pundits to be right. They also adjust quickly when they see they've made a mistake.
At 8:23 p.m., with just 12 percent of the New Hampshire vote counted, bettors gave Democratic Sen. Maggie Hassan more than a 90 percent chance of winning the Senate seat, up from 63 percent earlier in the day. You wouldn't have noticed that shift watching TV. The AP didn't call the race until 11:39 p.m.
Bettors also failed to predict President Donald Trump's win in 2016. But they at least gave him a 20 percent chance, much higher than most "expert" statistical modelers, like the Princeton Election Consortium, which gave him an absurd 0.01 percent chance.
Big picture: Betting odds remain the single best and fastest-updating predictor.
The Good: Tuesday night, Florida Gov. Ron DeSantis' odds of becoming the Republican presidential nominee jumped from 16 percent to 27 percent, while Donald Trump's odds fell to 18 percent. That's probably because of DeSantis' nearly 20-point blowout win in a swing state. I put this in the "good" category because, watching Trump on TV Tuesday night, I'm reminded that he's an ignorant bully who only cares about himself. His mere presence on the public stage hurts America by creating more division and hate. His election "denier" candidates like Doug Mastriano, Doug Bolduc, Tudor Dixon, and John Gibbs all lost.
Also, if DeSantis is nominated in 2024, bettors give him a 74 percent chance of winning, whereas they give Trump just a 47 percent chance.
The Good: If Vice President Kamala Harris is nominated, bettors give her just a 36 percent chance of becoming president.
The Ugly: Long-term incumbents won again: Sens. Patty Murray (D–Wash.), Mike Crapo (R–Idaho), and Chuck Schumer (D–N.Y.), who have spent 29 years in Congress; Sens. Ron Wyden (D–Ore.) and Chuck Grassley (R–Iowa) won, too (42 years).
The Good: Iowa passed an amendment protecting gun rights. Three states passed measures protecting reproductive freedom. Anti-abortion measures in two states lost. Maryland and Missouri legalized recreational weed.
Maybe Good: Ranked choice voting leads in Nevada.
The Bad: Recreational weed lost in Arkansas, North Dakota, and South Dakota. Sports gambling lost in California. California also banned e-cigarettes, which will create a new criminal black market and kill more cigarette smokers.
The Ugly: Schumer will probably be Senate Majority Leader again.
The Ugly: The Wall Street Journal reports: "Europe Doubles Down on Big Government" with "politicians adding hundreds of thousands of public-sector jobs, guaranteeing business loans."
Won't voters ever ask government to LEAVE PEOPLE ALONE?
It's so sad. All around the world, we don't learn.
By the way, ElectionBettingOdds.com also tracks football odds. The Buffalo Bills, despite losing last Sunday, still lead the Super Bowl pack. The Eagles, Chiefs follow; 49ers, Ravens and Cowboys follow.
COPYRIGHT 2022 BY JFS PRODUCTIONS INC.
The post The Election Betting Markets Fell Short. They're Still the Most Flexible Predictor. appeared first on Reason.com.
]]>Three members of Congress are attempting to avoid future Julian Assange–style prosecutions by amending the U.S. espionage law so that it doesn't apply to journalists.
Last week, Sen. Ron Wyden (D–Ore.) and Reps. Ro Khanna (D–Calif.) and Thomas Massie (R–Ky.) partnered up to reintroduce the Espionage Act Reform Act. The Espionage Act, passed in 1917, is ostensibly intended to punish and imprison government employees and contractors for providing or selling state secrets to enemy governments. In practice, the law has been brought to bear time and time again to attempt to punish journalists and whistleblowers for attempting to inform the public about serious issues the U.S. government would prefer to keep secret. While people like Pentagon Papers whistleblower Daniel Ellsberg, Iraq War leaker Chelsea Manning, domestic surveillance whistleblower Edward Snowden, drone whistleblower Daniel Hale, and WikiLeaks founder Julian Assange aren't spies of foreign governments, many have been threatened with or thrown into prison as if they were.
The Espionage Act Reform Act would change the law in a couple of ways. First of all, the reform would clarify that the espionage law specifically affects people authorized to receive confidential government information (federal employees or contractors), meaning that journalists who receive classified information and publish it are not engaging in espionage. It also establishes that whistleblowers within the government are able to turn to members of Congress, federal courts, an inspector general, and a couple of other key oversight agencies with important classified information without running afoul of the law.
In short, the goal is to align the law with what people think that the law is for—to punish spies, not people trying to warn lawmakers or the public about federal government misconduct.
"At a time when government officials claim the right to perform warrantless surveillance upon all American citizens, there is an urgent need to zealously guard freedom of the press and to demand government transparency and accountability," Massie said in a prepared statement. "The ongoing attempts to prosecute journalists like Julian Assange under the Espionage Act threaten our First Amendment rights, and should be opposed by all who wish to safeguard our constitutional rights now and in the years to come."
Assange still currently faces extradition from the U.K. to the United States, where he faces 18 separate espionage-related charges for publishing the documents provided by Manning. Media watchdogs and human rights groups have been warning that the prosecution of Assange serves as a threat to journalism and compromises free speech.
The Knight First Amendment Institute supports the bill and sent out a statement urging for better safeguards for those who report on important national security issues.
"We welcome this bill, which would provide important new protection for press freedom in the United States," said Carrie DeCell, senior staff attorney for the Institute. "It would provide crucial safeguards for national-security journalists, enabling them to report on issues of indisputable interest to the public without fear of criminal liability. Congress should enact this bill and also provide additional protections to national-security whistleblowers."
Khanna and Wyden first introduced the bill in 2020. Each of them was referred to their respective House and Senate Judiciary Committees, where they sat with no further action.
The post Proposed Bill Would Protect Journalists Like Julian Assange From Espionage Charges appeared first on Reason.com.
]]>President Joe Biden got elected in part by portraying himself as a moderate, rejecting calls for a wealth tax by his primary campaign rivals, Sens. Elizabeth Warren (D–Mass.) and Bernie Sanders (I–Vt.).
Now that Biden has made it to the White House, though, he just won't drop the idea, even though, like many of his tax-and-spend plans, he can't manage to get it through the Democrat-controlled Congress.
Biden first floated what I called the "Biden-Wyden wealth tax," after Sen. Ron Wyden (D–Ore.), the chairman of the Senate Finance Committee, back in October 2021. It went nowhere, thanks in part to the dynamic duo of Sens. Joe Manchin (D–W.Va.) and Kyrsten Sinema (D–Ariz.), who deserve credit for saving Biden from his party's worst policy ideas. It was too much even for Speaker Nancy Pelosi (D–Calif.), who, The Washington Post reports, privately derided the Biden-Wyden wealth tax as a publicity stunt.
Now, like a sequel to a movie that wasn't any good the first time around, a variation of the Biden-Wyden wealth tax is back for another try in the president's latest budget. This time around, the White House is trying to sell it using slick language. The New York Times reports that a White House document described the tax, aimed at those with assets of more than $100 million, as "a prepayment of tax obligations these households will owe when they later realize their gains."
Politico reports that "illiquid taxpayers may opt to pay later with interest."
Many of the same problems that applied to the original Biden-Wyden wealth tax apply to this new iteration of it. It could well be unconstitutional. Its retroactive application violates a principle of the rule of law. The small number of people targeted by it raises concerns about consent of the governed and about taxation without representation. There are practical issues having to do with the valuation of assets whose value may fluctuate wildly over time. We should be figuring out ways to ease the burden of taxation and shrink the size of government, not moving in the opposite direction. The money would be better used by the rich people who own it than by the lobbyist-influenced politicians in Washington.
One could have some fun, though, with these two concepts on which Biden-Wyden II reportedly relies—prepayment and "illiquid…may opt to pay later with interest." What if the rest of the taxpayers applied the same principle to the federal government, under the theory that turnabout is fair play? I'd send the government an invoice for the future value of all my Social Security and Medicare benefit payments. They'll owe it to me eventually anyway, so demanding the money now is just "a prepayment of…obligations" the government "will owe…later." Also, I'd like the value of the future defense spending and Social Security and Medicare spending that my children and possible future grandchildren will benefit from. It'd like that money from Washington now, as a prepayment, please.
If every taxpayer made this demand, the government wouldn't have enough money to pay right away. It'd be "illiquid." The government would have to do what it does now—borrow by issuing bonds and paying the money back later with interest. The government can also create money through the magic of the Federal Reserve, though when it does too much of that, as it has recently, it erodes the value of the money that's already out there.
On the face of it, the imbalance between the two demands for immediate prepayment of long-off possible obligations highlights the asymmetry of the tax collector and the taxpayer. When the tax collector asks to be paid immediately, he has the armed compulsory power of the state to back him up. The tax collector can go to court, impose a lien, seize assets. If a taxpayer wanted to be paid those future Social Security or Medicare benefits right away instead of waiting for later, the taxpayer would be laughed out of town. And the taxpayer would be helpless to try to take the money from the government.
There is one way, though, in which the taxpayers have more power than the tax collectors. That is at the ballot box.
If Biden gets turned out of office by the voters, he may yet have occasion to be thankful that the Biden-Wyden wealth tax was not enacted in such as way as to require immediate prepayment to the IRS of possible future speaking fees and book royalties of past presidents. Once the federal government embraces the idea of "prepayment of tax obligations these households will owe when they later realize their gains"—well, there's just no telling where that dangerous logic might lead.
The post Biden Is Trying To Pass a Wealth Tax—Again. It Could Be Unconstitutional. appeared first on Reason.com.
]]>Passing an enormous, (theoretically) paid-for spending bill that pleases all the various factions within the Democratic Party was never going to be easy. But the current framework that Democrats have unveiled—where party leaders determine what revenue raisers to use by throwing them at a wall like spaghetti and seeing what sticks—is downright disastrous.
This slapdash approach is par for the course nowadays for Congress. Passage of the 2017 Tax Cuts and Jobs Act (TCJA) was marred by last-second additions and changes, as well as funky accounting to pass muster by reconciliation rules. Even before this year, Congress was not exactly known for fostering the development of careful, thoughtful policy making.
But the process behind trying to "pay for" this year's reconciliation bill has taken things to a whole new level. Ideas that were half-baked from the beginning have arisen only to collapse under their own weight, with each attempt dropping more quickly than the last. It would almost be amusing if it didn't relate to important national fiscal policy.
Take the latest proposal by Sen. Ron Wyden (D–Ore.) to establish a "billionaires tax" by imposing a so-called mark-to-market regime of taxing unrealized capital gains for the wealthiest taxpayers. Doing so would not only have been an administrative nightmare for an IRS that is already demanding a massive expansion to its budget to fight tax evasion, but also likely would have wreaked havoc on markets as hundreds of the largest shareholders sold large portions of their holdings just to pay their tax bills.
The idea was promptly put aside, with Wyden's proposal not even lasting a full 24 hours before being pronounced dead. In any functional policy-making environment where legislation is being created by level-headed adults who have the goal of extracting the necessary amount of revenue with the minimum economic harm and additional tax complexity, this never would have happened.
Democrats are instead having the equivalent of a messy Facebook fight, openly airing their dirty laundry in the hopes of achieving their policy priorities through overwhelming public support and positive press. When that fails to materialize, they grumpily return to glaring at each other.
Another example: the since-aborted attempt to sneak an unprecedented expansion of the IRS's power to monitor taxpayers' finances into the reconciliation bill. Pushed by the Treasury Department, the original proposal would have required financial institutions to report data from accounts with annual gross inflows and outflows exceeding $600 total. Though the proposal technically only provided the IRS with data on gross numbers, the IRS could potentially have used its audit power to evaluate specific transactions.
Responding to the backlash over this attempt to monitor just about every account, the proposal was revised to raise the threshold to $10,000, with payroll deposits and spending up to that level exempted. Yet even this would have roped in Americans making cash-tipped wages, about half of small business owners, anyone selling tax-exempt used items, and someone making a large purchase after saving up for years, to name a few examples. By any metric, it would have caught millions of average-income Americans in its dragnet.
That proposal appears to be dead in the water as well after swing-vote Sen. Joe Manchin (D–W.Va.) accurately described it as "screwed up." But the question remains of how it got as far as it did—not only was the proposal itself fundamentally flawed, but it does not appear a necessary vote like Manchin was consulted beforehand.
While some of the worst ideas have been filtered out, the current framework has more than its fair share of bad ideas. For example, a proposed excise tax on corporate stock buybacks strikes at a common source of progressive angst, but there's really no good policy reason to discourage buybacks through the tax code.
Then there's proposals for a minimum corporate book tax. Populist claims that the tax code is rigged in favor of corporations are inaccurate—the deductions corporations use to lower their tax bills enjoy bipartisan support in Congress and corporate tax revenues this year are projected to be around the level they were projected to be this year prior to the passage of the 2017 tax cuts. But even if corporations were getting off scot-free, there are much more straightforward, less clunky ways to handle the issue, such as by modifying tax rates.
It's too late in the game to maintain any naivete about whether Congress can be trusted to responsibly shepherd taxpayer funds and maintain a fair and competitive tax code. But taxpayers should at least demand better than this slipshod approach of putting forward as many ideas as possible and seeing what can get passed.
While TCJA had some slapdash ideas attached through the congressional bargaining process, it largely achieved its goal of lowering rates and producing a less complex tax system. The slate of half-baked goods that Congress is preparing to present to American taxpayers would make sure that the tax system will need another overhaul sooner rather than later.
The post Democrats Have a Lot of Bad Ideas for Tax Reform appeared first on Reason.com.
]]>Senate Majority Leader Chuck Schumer (D–N.Y.) reportedly has been working for months to generate bipartisan support in his chamber for repealing the federal ban on marijuana. If so, there is little evidence of that effort in the draft legislation that he unveiled today, which is larded with new taxes, regulations, and spending programs that seem designed to alienate Republicans who might be inclined to support a cleaner bill on federalist grounds.
Schumer is presenting the Cannabis Administration and Opportunity Act, which is also backed by Sens. Cory Booker (D–N.J.) and Ron Wyden (D–Ore.), as a "discussion draft," inviting comments that presumably will shape the legislation as it is officially introduced. But the starting point for this discussion is not promising if the goal is to actually end the federal war on weed.
The first warning sign is the bill's name, which tells you that its sponsors are not content to eliminate the untenable conflict between the Controlled Substances Act (CSA), which prohibits marijuana in every context except federally approved research, and the laws of the 36 states that allow medical or recreational use. The next red flag is the bill's length, which, at 163 pages, is nearly twice as long as the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, which the Democrat-controlled House approved last December with support from just a handful of Republicans.
At 87 pages, the MORE Act was already chock-full of unnecessarily contentious provisions, and the Schumer bill doubles down on that approach. By comparison, the Respect State Marijuana Laws Act, which former Rep. Dana Rohrabacher (R–Calif.) first introduced in 2013, consisted of a single sentence that would have made the federal ban on marijuana inapplicable to people acting in compliance with state law. A bill that simply removed marijuana from the CSA's schedules of controlled substances would likewise be consistent with federalism, and it would be similarly brief, even allowing for conforming amendments.
The good elements of Schumer et al.'s bill include descheduling marijuana, automatic expungement of federal criminal records related to nonviolent marijuana offenses, and eliminating discrimination against cannabis consumers in immigration law and the distribution of federal benefits. The one notable concession to leery Republicans is a "states' rights" provision that prohibits the importation of marijuana into states where it remains illegal. But in many other respects, the bill either overrides state policy or adds another layer of licensing, regulation, and taxation.
Under the Cannabis Administration and Opportunity Act, state-licensed marijuana businesses, which already are regulated by state and local governments, would also be supervised by the Food and Drug Administration, the Treasury Department's Alcohol and Tobacco Tax and Trade Bureau, and the Justice Department's Bureau of Alcohol, Tobacco, Firearms, and Explosives. The bill envisions detailed rules dealing with production, storage, transportation, packaging, labeling, advertising, and sales. It establishes a minimum national purchase age of 21, meaning that states would not be free to set a lower age.
The bill imposes a federal excise tax on marijuana starting at 10 percent and rising to 25 percent by the fifth year, which would be in addition to frequently hefty state and local taxes. New York, for example, plans to collect a THC-based excise tax from recreational marijuana suppliers. That might amount to somewhere between 5 percent and 30 percent of the retail price, depending on the type of product and its THC content. New York is also imposing a 13 percent special sales tax, although it will exempt marijuana products from general sales taxes.* California collects a cultivation tax and imposes a 15 percent excise tax at retail, in addition to general sales taxes of up to 8.25 percent. According to Leafly, "a customer may pay anywhere from 23% to 38% in tax." Washington collects a 37 percent marijuana tax on retail sales, on top of general sales taxes as high as 10.5 percent. Schumer's bill would add to the burden that such taxes impose on consumers and make it even harder for legal suppliers to compete with the black market.
Like the MORE Act, the Cannabis Administration and Opportunity Act would use revenue from the federal marijuana tax to create new spending programs. The Community Reinvestment Grant Program would "fund nonprofits that provide services to individuals adversely impacted by the War on Drugs, such as job training, reentry services, and legal aid, among other services." The Cannabis Opportunity Program would "provide funding to eligible states and localities to make loans to assist small businesses in the cannabis industry owned by socially and economically disadvantaged individuals." The Equitable Licensing Grant Program would "provide funding to eligible states and localities to implement cannabis licensing programs that minimize barriers for individuals adversely affected by the War on Drugs."
As those proposals suggest, Schumer, Booker, and Wyden emphasize the "racial justice" rationale for legalizing marijuana. "The War on Drugs has been a war on people—particularly people of color," they say in the opening lines of their bill summary. "The Cannabis Administration and Opportunity Act aims to end the decades of harm inflicted on communities of color by removing cannabis from the federal list of controlled substances and empowering states to implement their own cannabis laws."
There is no denying that the war on weed has racist roots and continues to have a disproportionate impact on African Americans, who are nearly four times as likely as whites to be arrested for marijuana possession even though they are only slightly more likely to be cannabis consumers. But while presenting marijuana legalization as first and foremost a remedy for racial discrimination may appeal to the Democratic base, it is apt to turn off Republicans who are suspicious of race-based policy arguments. Congress should repeal the federal ban on marijuana because that policy is unjust, irrational, and inconsistent with federalist principles. While the fact that it also imposes a special burden on racial minorities is worth pointing out, ending marijuana prohibition would be a moral imperative even if that were not true.
Politico calls Schumer's bill a "long-shot bid for legal weed," and it is not hard to see why. The Senate is evenly divided between Democrats and Republicans, with Democratic control depending on Vice President Kamala Harris' tie-breaking vote. To overcome a legislative filibuster, Democrats who support legalization have to attract at least 10 Republican allies, and probably more. Politico notes that "some Senate Democrats," including New Hampshire Sen. Jeanne Shaheen, "have voiced opposition to legalizing marijuana, and no Republicans have come out to replace the dubious Democrats regardless of local support."
Even Republicans who represent states that have legalized marijuana for medical or recreational use are not necessarily on board. "GOP Sens. Mike Rounds of South Dakota and Steve Daines of Montana, who both represent states that have embraced recreational weed, remain opposed to federal legalization," Politico notes. "But others, such as Sens. Kevin Cramer (N.D.) and Lisa Murkowski (Alaska), have said they're open to discussing federal reform that still allows states to choose their own policies—the needle Schumer, Booker and Wyden will likely have to thread."
They are not off to a good start, since their proposed bill, except for promising to support states that keep marijuana illegal, does not actually allow states to "choose their own policies." Instead, it imposes a new layer of federal policies that either trump or complicate the choices that state legislators and regulators have made.
Even leaving aside President Joe Biden's resistance to legalization, persuading 60 senators to end pot prohibition was already an iffy proposition. Schumer et al.'s racially focused rhetoric and overly prescriptive approach will only make that quest more quixotic. Democrats need to decide whether they actually want to legalize marijuana—a change that more than two-thirds of Americans favor—or just want credit for seeming to try while scoring political points by blaming Republicans for their failure.
*CORRECTION: The original version of this post erroneously stated that general sales taxes will apply to recreational marijuana in New York.
The post Chuck Schumer Says He Wants To Legalize Marijuana. His Bill Suggests Otherwise. appeared first on Reason.com.
]]>A bipartisan group of lawmakers has introduced a bill to stop federal law enforcement from sidestepping citizens' privacy rights by secretly purchasing our personal data from third-party brokers.
In 2018 the Supreme Court ruled in Carpenter v. United States that the FBI violated a suspect's Fourth Amendment rights by tracking his cellphone without getting a warrant first. The majority opinion, written by Chief Justice John Roberts, concluded that "We hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through [cell site location information]."
In response to the ruling, federal agencies began looking for ways to just buy the information from brokers who were collecting it from third parties.
And so a group of privacy-minded lawmakers—including Sens. Rand Paul (R–Ky.), Ron Wyden (D–Ore.), Patrick Leahy (D–Vt.), and Mike Lee (R–Utah)—has introduced The Fourth Amendment Is Not For Sale Act. The bill prohibits federal law enforcement and intelligence agencies from attempting to bypass court order requirements by purchasing private citizen tech data from brokers or any third-party company that may have legitimately or illegitimately obtained the information.
In the past two years, we've seen the feds make this end run several times. In February 2020, the Wall Street Journal revealed the U.S. Immigration and Customs Enforcement purchased a commercial database full of cellphone tracking data (the very type of information the Supreme Court ruled was private) for immigration enforcement purposes. At the time, a Customs and Border Protection spokesperson said that while the database included tracking information, this was somehow different from the Supreme Court case because it didn't involve the use of cell towers to aid in the tracking, an argument that deliberately ignores the part of the decision that says that we have an expectation of privacy for records of our physical movements, regardless of the means used to access those records.
We've seen other signs of the feds purchasing our personal data. Last June the Wall Street Journal reported that the IRS had purchased access to cellphone location data in order to try to track down tax cheats. They apparently ended their subscription to the service after it failed to help them find any suspects.
The Fourth Amendment Is Not for Sale Act won't actually ban the purchase of this data, but it will require federal law enforcement officers to go get a court order, just as they have to do now if they want to force a phone service provider to cough up your information. It prohibits the use of this data as evidence if it's not legitimately collected. It also adjusts the rules of Foreign Intelligence Surveillance Act (FISA) courts to protect the private data of Americans abroad.
"The Fourth Amendment's protection against unreasonable search and seizure ensures that the liberty of every American cannot be violated on the whims, or financial transactions, of every government officer," Paul said in a prepared statement. "This critical legislation will put an end to the government's practice of buying its way around the Bill of Rights by purchasing the personal and location data of everyday Americans."
"There's no reason information scavenged by data brokers should be treated differently than the same data held by your phone company or email provider," Wyden said. "This bill closes that legal loophole and ensures that the government can't use its credit card to end-run the Fourth Amendment."
Wyden and Paul have been longtime bipartisan buddies in the fight to protect Americans from warrantless federal surveillance. A House version is expected to be introduced today by Reps Jerry Nadler (D–N.Y.) and Zoe Lofgren (D–Calif.).
The Senate version has several other notable cosponsors, including former presidential candidates Elizabeth Warren (D–Mass.), Bernie Sanders (I–Vt.), and Cory Booker (D–N.J.). A transpartisan group of tech and civil liberties organizations, including the American Civil Liberties Union, FreedomWorks, Demand Progress, the Due Process Institute, the NAACP, and Americans for Prosperity, have all signed on in support.
It's unfortunate that such a bill is even necessary, but given that federal officials argue that the Carpenter decision is about cell towers and not our overall data privacy, clearly it's needed.
The post Lawmakers Look To Stop the Feds From Secretly Buying Your Private Data appeared first on Reason.com.
]]>Have you heard about the newest national emergency?
No, not the COVID-19 pandemic. The most recent national emergency was declared just two weeks ago—when President Joe Biden granted himself emergency powers to freeze the property and assets of individuals and businesses connected to Myanmar's military, following an attempted coup in the southeast Asian country.
It didn't make national news. But why would it? It's just one of 34 currently active national emergencies—each coming with its own special powers that the president can use until he decides to stop. The longest-running was invoked by President Jimmy Carter in response to the Iran hostage crisis (which ended in 1981, though the "emergency" never did). Other emergencies authorized by Presidents Bill Clinton, George W. Bush, Barack Obama, and Donald Trump are still humming along too, many with no obvious end in sight.
Congress can respond to presidential emergency declarations by disapproving of them after the fact, which it occasionally does. For example, Trump's declaration of a national emergency along America's southern border as a way to redirect funds to the building of a border wall was blocked by Congress in 2019.
But doing so requires a supermajority of both chambers and, generally, Congress can't be persuaded to get off its collective duff. That's why Clinton's 1997 emergency trade embargo against Sudan—a country that obviously represents a serious threat to U.S. national security even 24 years later, natch—is still active. Obama's emergency sanctions targeting Moammar Gadhafi are too, even though he's been dead since 2011.
Congressional inaction and executive power-grabbing are nothing new, of course, but Sens. Rand Paul (R–Ky.) and Ron Wyden (D–Ore.) are once again teaming up to try to force that to change. Under a bill the two senators reintroduced on Friday, all presidential emergency declarations would expire after 72 hours unless Congress votes to allow them to continue.
The Reforming Emergency Powers to Uphold the Balances and Limitations Inherent in the Constitution (REPUBLIC) Act effectively flips Congress' role from one of a passive bystander to an active participant. Paul and Wyden say that in cases of true national emergencies there should be no problem convening a session of Congress within three days to approve a presidential declaration, and the consideration of a national emergency would get immediate priority.
"Congress cannot allow any White House to declare phony emergencies just to get around the legislative process envisioned by the Constitution," Wyden said in a statement. The proposal would "reassert Congress' role as a coequal branch of government, while still allowing a president to address real emergencies," he said.
The bill would automatically sunset national emergencies after 90 days unless Congress voted again to renew the emergency declaration. The bill would also repeal Section 706 of the Communications Act of 1934—a law written long before cell phones or the internet, but one with language so broad that some legal experts worry it could be effectively used as a "kill switch" for the internet.
Unfortunately, the bill is undermined by the fact that Paul and Wyden propose to exempt some presidential powers, such as those granted by the International Emergency Economic Powers Act (IEEPA), which allows presidents to impose sanctions on foreign officials and businesses deemed a threat to American national security. The powers granted by the IEEPA form the basis of many of the 34 ongoing national emergencies, including the most recent declaration issued by Biden.
Still, the Paul/Wyden bill should be part of a broader debate over the balance of power between Congress and the White House—a debate that is long overdue.
As Reason's Peter Suderman highlighted earlier this week, the federal government has been operating in a nonstop crisis mode—sometimes in response to officially declared national emergencies and other times due to its own incompetence—for more than two decades. "These emergencies have become excuses for permanent political power grabs, for restrictions on individual liberties large and small, for mass bureaucratization and mass expansion of government spending, trillions of dollars' worth of non-solutions to deep-rooted problems," Suderman wrote. "With every crisis, government grows. And now the crisis is government itself."
Undoing that permanent state of emergency should be a top priority for anyone concerned about the centralization of power and the executive branch's unilateral decision-making on everything from who gets bombed to who gets bailed out. Setting some basic limits on how long presidential national emergency declarations can last should be relatively low-hanging fruit.
The post Rand Paul, Ron Wyden Want To End Endless National Emergencies appeared first on Reason.com.
]]>Civil libertarians on both sides of the aisle and in both chambers of Congress have joined forces to call for canceling a little-known executive power.
Sens. Rand Paul (R–Ky.), Ron Wyden (D–Ore), and Gary Peters (D–Mich.), along with Reps. Tulsi Gabbard (D–Hawaii) and Thomas Massie (R–Ky.), introduced bills this week to abolish the so-called "internet kill switch"—a sweeping emergency executive authority over communications technology that predates World War II.
"No president from either party should have the sole power to shut down or take control of the internet or any other of our communication channels during an emergency," Paul argued in a statement announcing the Unplug the Internet Kill Switch Act.
The bill aims to revoke Section 706 of the Communications Act of 1934. When that law was passed, there was no internet. But the broad language included in Section 706 means that it could be invoked today to give a president "nearly unchallenged authority to restrict access to the internet, conduct email surveillance, control computer systems, and cell phones," Gabbard explained in her statement on the bill.
It's even worse than that. As Michael Socolow wrote in Reason last year, the law is so broad that it effectively gives the president the ability to commandeer any electronic device that emits radiofrequency transmissions. These days, Socolow noted, that includes "everything from your implanted heart device to the blow dryer for your hair. It includes your electric exercise equipment, any smart device (such as a digital washing machine), and your laptop—basically everything in your house that has electricity running through it."
Since the United States is technically engaged in 35 ongoing "national emergencies"—thanks in large part to an executive branch that has stripped those words of their meaning—we should probably be grateful that President Donald Trump hasn't yet reached for this power. He's already invoked Cold War–era laws to impose greater executive control over global commerce in the name of "national security" and has declared illegal immigration to be a national emergency as a political maneuver to redirect funding for a border wall.
Like many presidents before him, Trump seems willing to use whatever powers Congress has foolishly granted to the executive branch to the fullest extent. Congress should claw back what it can.
"With so many Americans relying on the internet to do everything from online banking to telehealth to education, it's essential that federal law reflect today's digital world, not the analog world of World War II," Carl Szabo, general counsel for NetChoice, a nonprofit that advocates for a free and open internet, tells Reason.
How much the federal government could actually do to shut down the internet remains a subject of debate. The very nature of the net—a diffuse network of interconnected computers and servers—makes it virtually impossible for the government to flip a literal on/off switch or push a stereotypical big red button to cut off all Americans.
But the Department of Homeland Security does have protocols for shutting down wireless networks during an emergency, which the agency argues could be used to stop a terrorist from detonating a remote bomb. Given that authoritarian leaders in other countries have shut down wide swaths of internet access during periods of unrest, it's not unfathomable that something similar could happen here.
"When governments around the world turn off internet access, they do significant harm to their national economies and their citizens' civil rights," Massie noted in a statement.
In the midst of an election season in which partisan lines have grown more rigid than ever and when neither major political party seems all that interested in pro-freedom policies, this team-up of libertarian-friendly lawmakers is a little heartwarming. Gabbard, Massie, Paul, and Wyden may not find many allies in Congress on this issue—and, indeed, they don't always agree with one another—but this is one of those issues that might not seem to matter much until suddenly it really does. It's better not to wait for that moment.
"The internet," Wyden declared in a statement, "is far too essential to nearly every part of our democratic system—everything from work, to school and free speech—for any president to have unilateral power to turn it off."
The post Rand Paul, Tulsi Gabbard, Thomas Massie, Ron Wyden Join Forces To Unplug the President's 'Internet Kill Switch' appeared first on Reason.com.
]]>"We've reached kind of an inflection point in the privacy debate," says Senator Ron Wyden (D–Ore.). With Americans spending more time online than ever before during the COVID-19 pandemic, he worries that government surveillance of the internet matters more now.
Before the Senate's May 14 vote to reauthorize the USA Freedom Act, formerly known as the PATRIOT Act, Wyden fought a losing battle to rein in the broad authority that it gives U.S. intelligence agencies to spy on the web activities of American citizens.
"Americans shouldn't have their most intimate information…snooped over by the federal government without a warrant," says Wyden. "That [information] is private and personal. It might be your dating history. It might be religious beliefs. It might be your fears…It's like data mining of somebody's thoughts."
Wyden, a Democrat, along with his Republican colleague Steve Daines (Mont.), tried attaching an amendment to the bill that would've explicitly banned government agents from collecting Americans' web search histories without a warrant from a non-FISA court. It was defeated by a single vote.
Now an anti-surveillance activist group called Fight for the Future is trying to convince Speaker Nancy Pelosi (D–Calif.) and congressional Democrats to add the same amendment to the House version of the bill.
But in a political world where Democrats regularly call the president a power-abusing authoritarian in the making and Republicans bemoan a deep state plot to take down Trump, there's still only weak support for concrete measures to rein in the post-9/11 surveillance state.
"Nancy Pelosi has spent the last several years saying that this administration is dangerous. She impeached the president for abuse of power," says Evan Greer, deputy director of Fight for the Future. "If she doesn't take this opportunity to get this amendment in place that at least puts some limit on this administration's surveillance authority, it's hard not to feel like the entire 'Resistance' rhetoric has been a bit of a scam."
Greer says Wyden's introduction of the amendment could be a way of alerting the public that intelligence agencies have already been collecting U.S. citizens' web search data. Wyden can't say that explicitly because that information would be classified.
"Senator Wyden has often been sort of a bit of a canary in the coal mine on things like this," says Greer. "He'll ask very specific questions of intelligence officials when they come to the Hill that sort of get at some of these things."
One example was Wyden's questioning of former Director of National Intelligence James Clapper in 2013 about the bulk collection of Americans' phone records. When Wyden directly asked Clapper "does the [National Security Agency] collect any type of data at all on millions or hundreds of millions of Americans," Clapper answered, "No, sir…not wittingly." Less than three months later, former intelligence contractor Edward Snowden provided journalists documents showing that the FBI and NSA collected millions of cellphone records.
When Reason asked Wyden if he could provide evidence that the government has engaged in warrantless surveillance of Americans' web searches, he said that he could not discuss classified intelligence information but that he has put in requests for public disclosure of any practices of this sort.
"I believe there's a [records] reporting requirement," says Wyden.
Senate Majority Leader Mitch McConnell (R–Ky.) opposed Wyden in the Senate, claiming that additional limitations to the nation's surveillance laws would "jeopardize important tools that keep America safe."
Wyden says McConnell's claim is "flatly inaccurate" and that his amendment addresses McConnell's national security concerns because, during a crisis, law enforcement agencies would still be allowed to gather intelligence before obtaining a warrant.
A more modest Senate amendment requiring FISA courts to hear analysis from opposing parties, such as the American Civil Liberties Union, was included in the version of the bill that passed. But Republican Sen. Rand Paul's more radical effort to eliminate the surveillance of American citizens altogether without a warrant from a non-FISA court was defeated 11-85. Even Wyden voted against it.
"I think that Senator Paul started an important conversation…with respect to whether the whole framework needs to be reconsidered," says Wyden. "I've told him that right now, I think I've got my hands full trying to make the many reforms that are needed in FISA immediately."
Greer encourages anyone concerned about government surveillance of what citizens are searching for on the web to call Nancy Pelosi's office and pressure her to put a version of the Wyden-Daines Amendment, one of which is currently being drafted by Rep. Zoe Lofgren (D–Calif.) and Rep. Warren Davidson (R–Ohio), back in the bill.
"It's really important that we remind lawmakers that the public does care about our right to be free from overly broad and intrusive surveillance," says Greer.
Produced by Zach Weissmueller, opening graphics by Lex Villena
Music: "Europa" by Yehezkel Raz licensed from Artlist; "Ganymede" by Yehezkel Raz licensed from Artlist; "Hang Drum Traveler" by Max H. licensed from Artlist; "The End" by Max H. licensed from Artlist
Photos: Rand Paul in Congress, Win McNamee/CNP/AdMedia/SIPA; Rand Paul Listening, Toni L. Sandys/CNP/AdMedi/SIPA; Mitch McConnell leaving Senate chamber, Tom Williams/CQ Roll Call/Newscom; James Clapper Testifying, Zhan Jun Xinhua News Agency/Newscom; Ron Wyden with colleagues in Capitol, SIPA/Newscom; Bill Barr looks at camera, Sipa USA/Newscom; Mitch McConnell in halls of Capitol, SIPA/Newscom; Nancy Pelosi and Adam Schiff at podium, Aurora Samperio/ZUMA Press/Newscom; J. Edgar Hoover building, Graeme Sloan/Sipa USA/Newscom; Nancy Pelosi at press conference, Stefani Reynolds/picture alliance/Consolidated/Newscom; Nancy Pelosi talking to press, Tom Williams/CQ Roll Call/Newscom; Trump holds up fist at White House, Andrew Harrer/UPI/Newscom; Web search in a dark room, Yui Mok/ZUMA Press/Newscom; Steve Daines talks with farmers, Tom Williams/CQ Roll Call/Newscom; Ron Wyden talks to reporters, Caroline Brehman/CQ Roll Call/Newscom; Zoe Lofgren in Congress, US Senate Television via CNP/MEGA/Newscom
The post Sen. Ron Wyden Wants To Stop the Government From Spying on Your Internet Searches appeared first on Reason.com.
]]>The debate over free speech on the internet has turned everything "tursy-turvy" says Sen. Ron Wyden (D–Ore.).
"I'm up against a group of big-government Republicans who seem to think the right answer is to push the private sector—users and consumers and shareholders and managers—push them aside and, in-effect, deputize the federal government as speech police in violation of the First Amendment," Wyden tells Reason.
Let's back up all the way back to 1996 when the internet was barely an infant. It was that year when a younger version of Wyden was one of co-authors of Section 230 of the Communications Decency Act. It is all of one sentence long; just 26 words promising that online platforms will not be held liable for content provided by users or other publishers. And it is, as Wyden described it on Tuesday, "about the most libertarian law on the books."
But it's also under attack these days, largely from conservatives unhappy with how Facebook, Twitter, and other social media sites have been policing content—including everything from reducing the visibility of some posts, to temporary or permanent bans on controversial figures trafficking in conspiracy theories and outright racism. Sen. Josh Hawley (R–Mo.) has taken the lead by introducing a bill to amend Section 230 under the pretense of fighting tech companies' supposed "bias" against Republicans. His bill would eliminate Section 230 liability protections from online platforms judged not to be operating in a "politically neutral" manner.
"With Section 230, tech companies get a sweetheart deal that no other industry enjoys: complete exemption from traditional publisher liability in exchange for providing a forum free of political censorship," Hawley said when he introduced the bill last week. Since then, the notion that Section 230 has always included an implicit "deal" requiring platforms take a neutral political stance has become a talking point in some parts of the political right.
What does Wyden, the author of Section 230, think of that claim?
"Totally wrong," says Wyden. "Section 230 has nothing to do with neutrality. Nothing. Zip. There is absolutely no weight to that argument."
What the law does imply, according to Wyden, is that conservative blogs and websites can put their point of view out into the marketplace, "where users and consumers will make judgments about it." In other words, you have a right to speech online, but not a right to get your speech hosted on anyone else's website. The same is true for liberal perspectives online. "It's about making sure that all the voices get heard," Wyden says.
Conservatives like Hawley—and some of the newly emergent illiberal or "post-liberal" voices on the right—feel like their voices aren't being heard. They blame tech companies like Facebook and Google for this so-called "censorship." Under Hawley's bill, the misleadingly-titled "Ending Support for Internet Censorship Act," online platforms would have to hand over intellectual property to the federal government and would have to face a panel of partisan political appointees who would certify that the platform was operating in a "politically neutral" way.
As Reason's Elizabeth Nolan Brown wrote last week, the bill is essentially an attempt at resurrecting the old Fairness Doctrine—"a policy that was roundly denounced by conservatives for its chilling effect on free speech and its propensity to further marginalize non-mainstream voices—and apply this cursed policy paradigm to anything online."
Conservatives rushing ahead with a plan to put the federal government in charge of online speech makes about as much sense as if liberals thought it would be a good idea to have President Donald Trump and Attorney General William Barr policing websites, says Wyden.
He's also worried about how rolling back Section 230 would help entrench some of the very same tech companies that conservatives see as villains.
"This was an important law for the little guy when we wrote it, and it arguably is even more important today," Wyden says. Big tech companies like Facebook benefited from the freedom provided by Section 230 when they were starting up, Wyden said, but now that they have become dominant players online, they are trying to "pull up the ladder" behind them, he says.
"Frankly, if somebody rolled back some of Section 230, it helps the big technology people, like Facebook, hold off their small competitors," Wyden argues.
Where Wyden does believe the federal government should get more involved is on the debate over privacy and data. He's called for the Federal Trade Commission (FTC) to hold Facebook founder and CEO Mark Zuckerberg personally liable for his company's data breaches. In our interview, Wyden said he believed Zuckerberg had lied "on several occasions" about Facebook's privacy policies. "I do believe that the CEO should be held personally liable if they are found to have repeated misrepresented" those policies, said Wyden, who drew a parallel to how the government treats top executives at major financial institutions differently from small bankers.
In other words, Wyden's view is that the federal government should play a strong enforcement role when it comes to online privacy, but that it should have a fully hands-off policy when it comes to regulating speech online. It's an argument that not only libertarians but also conservatives and liberals interested in a free and open internet could agree with.
But the illiberal right—for which Hawley is acting as a sort of "spokesman in the Senate," according to Washington Free Beacon Editor Matthew Continetti—wants more government control over all online speech. Hawley's bill would require tech companies to get re-certified by the FTC as "politically neutral" every two years, effectively giving every new presidential administration a de facto veto over online speech. If that's not censorship, it's certainly brushing right up against it—and if you think too much of American society is already politicized, just wait until the fate of the internet is tied to the outcome of every presidential election.
It's easy to see why Wyden feels like the ground is shifting under his feet. For decades, he's been something of a rarity in Washington; a progressive Democratic with self-described "libertarian chromosomes" who has stood against executive power grabs and been a tireless advocate for free speech, especially online. Now, some of his across-the-aisle allies who used to share a skepticism of government power are missing in action, replaced by moralizing authoritarians who don't even seem to understand the obvious consequences of what they are proposing.
"For the life of me," Wyden says, "I can't understand how [rolling back Section 230] has become a big part of a political party that used to believe in less government."
The post Sen. Ron Wyden: Conservatives Are 'Totally Wrong' About Political Neutrality Under Section 230 appeared first on Reason.com.
]]>The United States is currently in a state of emergency. Thirty-two of them, actually.
The two most recent ones have received most of the attention. President Donald Trump declared one earlier this year in order to justify building a wall at the southern border, and he declared the other to block Huawei, a Chinese telecom company, from doing business in the United States. But the longest-running national emergency dates back to 1979, declared by President Jimmy Carter in response to the Iranian hostage crisis. The hostages were released in 1981, but the "national emergency" continues.
These days, the National Emergency Act of 1976 mostly serves as a way to bulk up executive power in order to accomplish such goals as banning trade with Sudan—a national emergency declared under President Bill Clinton in 1997 that's still ongoing—or as a way to get around Congress when it won't approve billions of dollars in spending. It's a convenient tool for ticked off executives, in other words, not the last resort for addressing acute national crises.
Congress can respond to presidential emergency declarations by disapproving of them after the fact, which Congress did earlier this year in response to Trump's border wall emergency. But the president only has to veto those resolutions of disapproval, as Trump did, to keep the emergency in place.
Sens. Rand Paul (R–Ky.) and Ron Wyden (D–Ore.) say that should change. Under a bill the two introduced Wednesday, all presidential emergency declarations would expire after 72 hours unless Congress voted to allow them to continue. In the event of a true national emergency, a president would still be empowered to respond quickly, but passage of the Reforming Emergency Powers to Uphold the Balances and Limitations Inherit in the Constitution (REPUBLIC) Act would transfer ultimately authority back to Congress, the senators say.
"Congress fails its responsibilities to the American people and the constitution when it leaves the executive virtually unchecked to unlock and exercise emergency powers in perpetuity," Paul said in a statement.
In addition to the automatic 72-hour sunset on emergency declarations, the bill would also set an automatic 90 day limit on congressionally approved national emergencies, thus forcing lawmakers to continually renew declarations and allowing older, no-longer-relevant declarations to expire. Paul's and Wyden's bill would also establish an expedited process for Congress to approve presidential emergency declarations and would repeal statutory authority empowering a president to unilaterally control communication technology in the event of an emergency without congressional approval.
Importantly, the bill would not affect presidential powers under the 1977 International Emergency Economic Powers Act, which Trump threatened to use recently to unilaterally impose tariffs on Mexican imports. That law is meant to allow presidents to respond to foreign adversaries with economic sanctions—legally, it is unclear whether tariffs could be part of that response—in the event of a national emergency, and the REPUBLIC Act specifically exempts it from congressional oversight.
Still, Paul and Wyden's proposal would be a step towards reversing the decades-long trend of handing congressional powers over to the executive branch. It's a welcome signal that at least some members of Congress, on both sides of the aisle, are interested in restoring a semblance of balance to the federal government's distribution of powers.
"Presidents have run roughshod over the constitution for far too long because Congress keeps shirking its obligations," Wyden said in a statement about the bill's introduction. "Checks and balances are more than pretty words on a page; they're a bedrock principle of our democracy."
The post Senators Rand Paul and Ron Wyden Pitch New Limitations on Presidential Emergency Powers appeared first on Reason.com.
]]>James Clapper, then the Director of National Intelligence, flat out lied to Sen. Ron Wyden (D-Ore.) at Senate hearing on March 12, 2013 when he was asked whether the National Security Agency collects "any type of data at all on millions or hundreds of millions of Americans." Clapper replied, "No sir. Not wittingly."
The fact that Clapper had wittingly lied to Congress was made clear just three months later by whistleblower and patriot Edward Snowden's revelations of the vast extent of the NSA's warrantless electronic spying on Americans.
Clapper should have been prosecuted for lying long ago. The statute of limitations on perjury will run out this coming March, so time is of the essence. The Washington Examiner cites numerous lawmakers urgently calling for the prosecution of Clapper including Representatives Thomas Massie (R-Ky.), Louie Gohmert (R-Tex.), James Sensenbrenner (R-Wis.), and Ted Poe (R-Tex.) who argues, "The time for the Department of Justice and the FBI to bring the accusations against James Clapper in front of a grand jury is long overdue. He and others who have held administrative power must be held accountable to the same laws that govern the people of the United States."
Evan Greer from the privacy activist group Fight for the Future tells the Examiner:
"James Clapper lied to Congress, and to the American people, about U.S. government surveillance programs that allow agencies like the NSA and FBI to constantly monitor all of us without due process or any suspicion of wrongdoing. Allowing the government to turn our computers and phones into spies that we take with us everywhere we go is detrimental to human rights and has a chilling effect on freedom of expression, but the worst part is that there is zero evidence that these programs have ever stopped a single violent attack."
"What makes these mass government surveillance programs so dangerous is that they're allowed to operate without any meaningful accountability or oversight," Greer added. "The fact that James Clapper is free to go about his life while Edward Snowden is still exiled is a travesty of justice."
Yes, it is.
Of course, when Clapper is found guility at trial (as he surely would be), the former spy chief should be sentenced to prison for five years for his perjury.
Watch below to see Clapper baldface lie to Congress:
The post Prosecute Former Spymaster James Clapper for Lying to Congress Now. Time is Running Out. appeared first on Reason.com.
]]>Yesterday, Brian Doherty covered many of the issues related to the Trans-Pacific Partnership (TPP), a sweeping trade deal currently coursing its way through Congress.
Generally speaking, free trade—or even just freer trade—is a moral and an economic good. As a basic condition of human existence, individuals and companies should have the right to do business with whomever they want to the greatest degree possible. Virtually all economists agree, as Doherty notes, that unilaterally reducing one's own trade barriers helps the country choosing that course of action.
Writing in Wired, Sen. Ron Wyden (D-Ore.) calls out questions related to intellectual property and the criminalization of certain activities under the U.S.'s Digital Millennium Copyright Act (DMCA), a 1998 law that largely favored big-content providers at the expense of users and smaller creators (read Mike Godwin's negative take in Reason on the law here).
Among other things, the DMCA criminalized circumventing encryption and ripping commercially made DVDs, a practice that was and is still perfectly legal for CDs. It also reduced existing safe harbor exemptions for websites that were hosting copyrighted materials, even when it just a user of the site posting the material without any authorization. In concert with The Copyright Term Exenstion Act (CTEA), which lengthened copyright terms significantly and signed around the same time, DMCA was an "Empire Strikes Back" moment in which large, powerful forces in the entertainment and software industries got almost exactly the laws passed they wanted to see passed.
Wyden recognizes the problems with these laws, noting they contain "provisions that go too far to protect copyright at the expense of free speech, digital security and the public good." (It's worth noting that intellectual property laws, as discussed in the Constitution, are explicitly authorized not as real property rights but as a means "to promote the progress of Science and the useful Arts" and guarantee "the exclusive Right" of ownership to holders only for "limited Times.")
The Oregon senator writes,
Activists rightfully criticize the effect of the trade agreements to require trade partners to mirror the U.S. copyright term of 70 years beyond the life of the author. That is far too long.
When it comes to TPP, the Oregon senator says, you've got autocratic regimes such as China and Russia that are actively working to reduce the ability of the internet to traverse naitonal borders and they are working hard to build such electronic fences into TPP.
Even democratic regimes with a lesser history of honoring free speech than the U.S. are proposing unacceptable restrictions on the internet. If the United States lets these countries set the standard that the internet should be subdivided into country-sized pieces, it will devastate digital entrepreneurs in the U.S. and squelch one of the world's most powerful avenues for free speech….
I successfully pushed U.S. trade negotiators to seek new provisions on "limitations and exceptions" on copyright in the Trans-Pacific Partnership negotiation. These new provisions are consistent with what is known as "fair use," and are vital for researchers, journalists, and an informed public….
This bill makes it clear that the US can roll back overly broad IP laws even after they are subjects in a trade negotiation.
As much a press release as an article, the Wired piece also gives Wyden space to discuss Aaron's Law, a bill that he and California Rep. Zoe Lofgren pushed after the suicide of activist Aaron Swartz. Swartz was facing serious jail time for downloading journal files from MIT's system without authorization. Wyden points out that "CIA officials have admitted to hacking Senate files, with no consequences whatsoever."
And so:
Yesterday, [I and Lofgren] reintroduced Aaron's Law, along with Sen. Rand Paul. We won't stop until Congress achieves real reforms in this area. Our bill takes direct aim at heavy-handed prosecutions for non-malicious computer crimes. Violating a smartphone app's terms of service or sharing academic articles should never be punished more harshly than a government agency hacking into Senate files.
That all sounds good to me, and relieves many reasons to be worried about the TPP.But then Wyden uncorks this paean to Net Neutrality that, to be honest, leaves me more than little cold.
When Big Cable wanted to divide the internet into fast and slow lanes, four million internet users told the Federal Communications Commission that the open internet, and net neutrality, needed to remain the law of the land. FCC Chairman Tom Wheeler listened, and we won again.
Together we can stand tall against threats to innovation and free speech, from restrictive copyright, to government plans for backdoors in our private electronics to the cybersecurity bill that is really a surveillance bill in sheep's clothing. With the internet community's continued involvement, we can score another victory by incorporating this open internet principles into global trade policy.
The open internet (a lived reality) and net neutrality (an activist fever dream) are hardly the same thing. As the special Reason.com landing page, Don't Tread on My Internet, makes clear, the broad-based reforms comprising net neutrality give the government unprecedented powers to fuck with every aspect of cyberspace and digital communiation broadly speaking.
One of the least-honored agencies ever devised, the FCC is now claiming the ability to regulated the internet using the same Title II classification it uses to regulated old-style telephony. While the currrent chair of the group insists he will used a "light touch" and provide "forbearance" on all sorts of issues, such guarantees are ultimately useless. What if he changes his mind? Or what about the next head of the FCC, an agency that spent a decade litigating Janet Jackson's exposed nipple at the Super Bowl? Net neutrality doesn't represent deliverance from the phantom menace of bad behavior by cable companies (who, by the FCC's own data, have kept upgrading the number and speed of fixed and mobile connections over the past 20 years) but assigns the government the role of gatekeeper of the best tool yet devised for communication and expression.
If you read one article about net neutrality this day, month, or year, make it this one by Geoffrey A. Manne and R. Ben Sperry, which documents just how off-base net neutrality proponents are.
A snippet:
This latest campaign to regulate the Internet is an apt illustration of F.A. Hayek's famous observation that "the curious task of economics is to demonstrate to men how little they really know about what they imagine they can design." Egged on by a bootleggers-and-Baptists coalition of rent-seeking industry groups and corporation-hating progressives (and bolstered by a highly unusual proclamation from the White House), Chairman Wheeler and his staff are attempting to design something they know very little about-not just the sprawling Internet of today, but also the unknowable Internet of tomorrow.
Thanks to Sen. Ron Wyden, the TPP seems much less bad than it would be otherwise.
But there's still a lot of fight to be had regarding the United States' own internet governance.
Related: Ron Wyden one of just two senators to vote against "The Stop Advertising Victims of Exploitation Act" (SAVE), specifically on the grounds that it will chill the internet.
The post Ron Wyden on Trans-Pacific Partnership, Intellectual Property Law, & Net Neutrality appeared first on Reason.com.
]]>Senators Ron Wyden, Mark Udall, and Rand Paul (D-Ore., D-Colo., and R-Ky., respectively) have penned a group commentary for the Los Angeles Times pushing hard for an end to National Security Agency bulk data collection and criticizing the lackluster USA Freedom Act Congress is considering instead. Acknowledging the one-year anniversary of Edward Snowden's leaks, they write:
Dragnet surveillance was approved by a secret court that normally hears only the government's side of major cases. It had been debated only in a few secret congressional committee hearings, and many members of Congress were entirely unaware it. When laws like the Patriot Act were reauthorized, a vocal minority of senators and representatives — including the three of us — objected, but the secrecy surrounding these programs made it difficult to mobilize public support.
And yet, it was inevitable that mass surveillance and warrantless searches would eventually be exposed. When the plain text of the law differs so dramatically from how it is interpreted and applied, in effect creating a body of secret law, it simply isn't sustainable. So when the programs' existence became public last summer, huge numbers of Americans were justifiably stunned and angry at how they had been misled and by the degree to which their privacy rights had been routinely violated. Inflated claims about the program's value have burst under public scrutiny, and there is now a groundswell of public support for reform.
The senators gave details on some of their proposed reforms, many of which were stripped from the USA Freedom Act:
This package of reforms includes overhauling domestic surveillance laws to ban the bulk collection of Americans' personal information, and closing the loophole that allows intelligence agencies to deliberately read Americans' emails without a warrant. It includes reshaping the Foreign Intelligence Surveillance Court by installing an advocate who can argue for Americans' constitutional rights when the court is considering major cases, and by requiring that significant interpretations of U.S. law and the Constitution be made public. And it would strengthen and clarify the government's authority to obtain individual records quickly in genuine emergency situations.
They believe the wording of the USA Freedom Act is vague enough to allow the bulk collection of data to continue and are declaring their opposition to the law's passage.
Read their full op-ed here.
The post Sens. Wyden, Udall, Paul take to <em>L.A. Times</em> to Demand Real NSA Reform appeared first on Reason.com.
]]>"I rise today to oppose the nomination of anyone who would argue that the President has the power to kill American citizens not involved in combat," Paul will say on the Senate floor Wednesday. "I rise today to say that there is no legal precedent for killing American citizens not directly involved in combat and that any nominee who rubber stamps and grants such power to a President is not worthy of being placed one step away from the Supreme Court."
Sen. Rand Paul (R-Ky.), whose filibuster last year against the nomination of Barack Obama's pick to head the CIA won plaudits from across the political spectrum, is pushing back against the nomination of David Barron to the U.S. Court of Appeals for the First Circuit.
Update: Here is video of Rand Paul.
As Paul explained in The New York Times, Barron authored at least two memos justifying the killing by the U.S. government of a U.S. ciitzen abroad. No trial necessary. Paul isn't alone in wanting more information about Barron's role in the Office of Legal Counsel (OLC).
I agree with the A.C.L.U. that "no senator can meaningfully carry out his or her constitutional obligation to provide 'advice and consent' on this nomination to a lifetime position as a federal appellate judge without being able to read Mr. Barron's most important and consequential legal writing." The A.C.L.U. cites the fact that in modern history, a presidential order to kill an American citizen away from a battlefield is unprecedented.
The Bill of Rights is clear. The Fifth Amendment provides that no one can be "deprived of life, liberty, or property, without due process of law." The Sixth Amendment provides that "the accused shall enjoy the right to a speedy and public trial, by an impartial jury," as well as the right to be informed of all charges and have access to legal counsel. These are fundamental rights that cannot be waived with a presidential pen.
In battle, combatants engaged in war against America get no due process and may lawfully be killed. But citizens not in a battlefield, however despicable, are guaranteed a trial by our Constitution.
Sen. Ron Wyden (D-Oregon), the only Democrat to join Paul's filibuster last year, just finished up a speech on C-SPAN calling for full disclosure of the memos. A Boston Globe report says
Some Democrats, including Senator Ron Wyden of Oregon, have expressed public reservations about Barron, prompting the White House to allow all 100 senators to review at least some of the confidential documents Barron wrote. Wyden's spokeswoman said Tuesday that he had not yet taken a position on the nomination.
Barron's legal opinion was related to the potential use of deadly force against Americans in counterterrorism operations. It is believed to be the legal basis for the drone killing of Anwar al-Awlaki, an American who allegedly recruited for Al Qaeda in Yemen. Earlier this month, the American Civil Liberties Union called for a delay in the confirmation vote so senators could review related documents.
Update: Here's Wyden's talk on C-SPAN.
Somewhat inexplicably and despite reservations, Wyden is a yes vote on Barron.
Majority Leader Sen. Harry Reid (D-Nev.) is confident enough Dems will vote in favor of Barron. Boy, that's great.
Say what you will about most senators, who are really useless when it comes to principled action. Thank you, Sens. Wyden and Paul, for salvaging some shred of dignity for the Senate. And shame on all those who just can't be bothered to stand for something other than cheap partisan advantage. The inability of elected leaders to actually articulate and follow principles is the main reason why people hate politicians. Who can blame them? You don't need to agree with pols all the time, or even any of the time, to be able to respect them. But when they so transparently push partisan agendas that are at odds with their supposed beliefs, well, screw them all.
How is it that the White House, whether run by a Dem or a Rep, can get away with only giving senators just "some of the confidential documents" that a nominee has written? It's bad enough that the Obama admin calls itself the most-transparent regime EVAH even as it withholds all sort of info from us regular people. But to refuse senators full access? That's incredible. As is any senator's willingness to participate in a vote under such circumstances.
Breaking: Sen. Ted Cruz (R-Texas) is now talking about Barron on C-SPAN2, mostly attacking him as a judicial activist.
Also: Read Scott Shackford's take.
The post Rand Paul Stands Up for Civil Liberties Again. And Against David Barron appeared first on Reason.com.
]]>In an exclusive interview with Eli Lake of The Daily Beast, Director of National Intelligence James Clapper shows the great gulf between spooks and the rest of us. You know that super-secret program, sanctioned by section 215 of The Patriot Act and exposed by Edward Snowden, through which the National Security Agency (NSA) was collecting massive amounts of information on U.S. citizens? The one he forgot about when being questioned by Sen. Ron Wyden (D-Ore.)? Well, Clapper says the problem with it was its secrecy:
"I probably shouldn't say this, but I will. Had we been transparent about this from the outset right after 9/11—which is the genesis of the 215 program—and said both to the American people and to their elected representatives, we need to cover this gap, we need to make sure this never happens to us again, so here is what we are going to set up, here is how it's going to work, and why we have to do it, and here are the safeguards… We wouldn't have had the problem we had," Clapper said.
That's pretty curious, given that folks involved with it denied the program's existence until their hand was forced by events they couldn't control. And we'll see just how committed to explanation the NSA (and the Obama administration) is going forward.
There's also this:
"What did us in here, what worked against us was this shocking revelation," he said, referring to the first disclosures from Snowden. If the program had been publicly introduced in the wake of the 9/11 attacks, most Americans would probably have supported it. "I don't think it would be of any greater concern to most Americans than fingerprints. Well people kind of accept that because they know about it. But had we been transparent about it and say here's one more thing we have to do as citizens for the common good, just like we have to go to airports two hours early and take our shoes off, all the other things we do for the common good, this is one more thing."
I'm not sure about any of that, but it does raise the obvious question: Then why hasn't the NSA or the FBI or the CIA or the president (this one and past ones) ever been transparent about anything? This is classic hand-in-the-cookie-jar redemption-seeking, in which the malefactor swears to change his behavior without any indication he will.
As important, Clapper should get outside of whatever tinfoil-lined bunker he lives in on a regular basis. Americans actually are kinda-sorta concerned about fingerprint databases, genetic swabs, and ginormous databases held by the government. Not because we're nutjobs but because of the government's proven track record of abusing all sorts of information it holds.
Clapper addresses the misleading answer he gave to Wyden during a Senate hearing back in 2013. Wyden, a staunch civil libertarian and the only Democrat to join Sen. Rand Paul's anti-drone filibuster, asked Clapper,
"Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" At the time Clapper responded, "No sir." Wyden then asked, "they do not?" Clapper responded, "Not wittingly. There are cases where they could inadvertently, perhaps collect, but not wittingly."
Clapper subsequently said that "responded in what I thought was the most truthful or least untruthful manner, by saying, 'No.'" He elaborates to the Beast by claiming that he wasn't even thinking about the 215 program at the time (it was still classified, though clearly Wyden knew about it) but about a different program. So, don't you see, Clapper wasn't lying. Really. Believe him, because he and the people he represents have always been so forthcoming. Except when they're not. Which is always. Unless they have to spill.
Does anyone still question why people don't trust the government?
And then read Eli Lake's Reason masterpiece, "The 9/14 Presidency: Barack Obama is operating with the war powers granted George W. Bush three days after the 9/11 attacks."
The post James Clapper: Americans Wouldn't Have Minded Super-Secret Surveillance if They Had Known About it All Along. appeared first on Reason.com.
]]>On Bloomberg's "Political Capital with Al Hunt," Wyden said he's not familiar with the details of Paul's lawsuit, but noted they've worked together on NSA issues, according to a transcript of the interview.
"Sen. Paul and I have worked very closely together on these issues. Both of us feel, Al, that the government ought to be able to collect the information it needs when it needs it to protect our citizens … but the reality is, the idea of collecting millions and millions of phone records on law-abiding Americans doesn't make us any more secure," Wyden said. "It undermines our liberty. I personally believe that, yes, it is unconstitutional to collect millions and millions of phone records on law-abiding Americans. It violates the Fourth Amendment."
The post Sen. Wyden Hints at Support for Rand Paul's NSA Suit appeared first on Reason.com.
]]>Yesterday, Director of National Intelligence James Clapper testified before the Senate Intelligence Committee about the foreign threats that menace the peace of the United States. I have no doubt that such threats exist, but why anyone would trust the way that Clapper would interpret (and strategically withhold) intelligence about those threats is beyond me. As all the world knows, Clapper lied last March in sworn testimony to Congress about the extent of National Security Agency spying on American citizens.
During the hearing yesterday, NSA critic Sen. Ron Wyden (D-Ore.) began his questioning by stating that Clapper and the NSA had previously made "misleading and deceptive statements" in their testimony. Wyden then added:
Let me start by saying that the men and women of America's intelligence agencies are overwhelmingly dedicated professionals, and they deserve to have leadership that is trusted by the American people. Unfortunately, that trust has been seriously undermined by senior officials' reckless reliance on secret interpretations of the law and battered by years of misleading and deceptive statements that senior officials made to the American people. These statements did not protect sources and methods that were useful in fighting terror. Instead, they hid bad policy choices and violation of the liberties of the American people.
For example, the director of the NSA said publicly that the NSA doesn't hold data on U.S. citizens. That was obviously untrue.
Justice Department officials testified that Section 215 of the Patriot Act is analogous to grand jury subpoena authority, and that deceptive statement was made on multiple occasions.
Officials also suggested that the NSA doesn't have the authority to read Americans' e-mails without a warrant. But the FISA Court opinions declassified last August showed that wasn't true, either.
Earlier in the week, Rep. Darrell Issa (R-Calif.) sent a letter signed by five other congressmen—both Republican and Democratic—to President Obama asking him to fire Clapper. The letter read:
The continued role of James Clapper as Director of National Intelligence is incompatible with the goal of restoring trust in our security programs and ensuring the highest level of transparency. Director Clapper continues to hold his position despite lying to Congress, under oath, about the existence of bulk data collection programs in March 2013. Asking Director Clapper, and other federal intelligence officials who misrepresented programs to Congress and the courts, to report to you on needed reforms and the future role of government surveillance is not a credible solution."
Unfortunately, in a reply to the letter a spokesperson for President Obama stated:
The president has full faith in Director Clapper's leadership of the intelligence community. The director has provided an explanation for his answers to Sen. Wyden and made clear that he did not intend to mislead the Congress.
Not intend to mislead the Congress? That is what happens when you start lying, you have to keep lying.
The post Why Believe Anything Director of National Intelligence Clapper Says? appeared first on Reason.com.
]]>The Brookings Institute has released scores ranking how effective members of Congress were in 2013. And by "effective" they mean how effective congresspersons were at getting their proposed legislation through committee, a major hurdle in the legislative process. What they find may surprise you.
Sen. Ted Cruz (R-TX) was the most efficient Senator, which means Cruz got the highest percentage of his proposed bills through committee (7 out of 8). Compare this to Sen. David Vitter (R-LA) who proposed 61 pieces of legislation and literally none of them made it through committee.
Using another metric to define productivity, Sen. Ron Wyden (D-OR) and Sen. Rand Paul (R-KY) had the highest number of their bills make it through committee, 13 and 11 respectively. Thinking about this another way for instance, Rand Paul was 4x as effective at getting bills through committee than the average Senator would be expected to.
It may surprise some that Paul and Cruz, two senators dubbed tea party "wacko birds" could be so effective in getting their legislation through committee. It demonstrates that while these Senators are often defined by their willingness to take ideological stances on issues, albeit different stances at times, they are also willing to engage with the actual political process in efforts to make changes.
Here are some examples of what Rand Paul has gotten through committee:
The Fourth Amendment Restoration Act is an effort to prevent US government agencies from searching Americans' phone records without a warrant based on probable cause.
The National Right-to-Work Act, would repeal existing law in efforts to reduce the use of coerced union membership as a condition of employment.
The Separation of Powers Restoration and Second Amendment Protection Act essentially tells the President that Congress will not accept any executive orders, signing statements, or expenditures of federal funds on projects or programs not appropriated to the executive branch.
The Default Protection Act outlines priorities for federal government obligations if the debt limit is reached, including paying the interest and principal on public debt, paying benefits to members of the Armed Forces, and paying Social Security and Medicare.
Aside from getting bills through committee, examining simply the number of bills proposed, Democratic senators and Bernie Sanders (I-VT) took 9 of the 10 top slots, while Vitter, the lone Republican, was first in proposing the highest number of bills. (In the Republican-controlled house, Democrats also took a higher share of the top slots with 7 of the top 10 bill proposers compared to 3 in 10 being Republicans.)
The post Brookings Moneyball Scores: Ted Cruz Most Efficient Senator, Ron Wyden and Rand Paul Most Effective appeared first on Reason.com.
]]>Republicans are looking forward to working with Sen. Ron Wyden, a pragmatic Democrat from Oregon who has reached across the aisle on healthcare and taxes.
Wyden will soon take the gavel from Sen. Max Baucus (D-Mont.), who has presided over the panel as chairman or ranking member since 2001. Baucus is expected to be confirmed as President Obama's ambassador to China.
"I'm excited," said Sen. Dan Coats (R-Ind.), who has co-sponsored a comprehensive tax reform bill with Wyden.
"He knows you've got to have bipartisan support to get a tax bill that's going to pass and be worth anything."
The post Democrats Nervous About Sen. Wyden Being Keen To Work With Republicans appeared first on Reason.com.
]]>The Brookings Institute has released scores ranking how effective members of Congress were in 2013. And by "effective" they mean how effective congresspersons were at getting their proposed legislation through committee, a major hurdle in the legislative process. What they find may surprise you.
Sen. Ted Cruz (R-TX) was the most efficient Senator, which means Cruz got the highest percentage of his proposed bills through committee (7 out of 8). Compare this to Sen. David Vitter (R-LA) who proposed 61 pieces of legislation and literally none of them made it through committee.
Using another metric to define productivity, Sen. Ron Wyden (D-OR) and Sen. Rand Paul (R-KY) had the highest number of their bills make it through committee, 13 and 11 respectively. Thinking about this another way for instance, Rand Paul was 4x as effective at getting bills through committee than the average Senator would be expected to.
It may surprise some that Paul and Cruz, two senators dubbed tea party "wacko birds" could be so effective in getting their legislation through committee. It demonstrates that while these Senators are often defined by their willingness to take ideological stances on issues, albeit different stances at times, they are also willing to engage with the actual political process in efforts to make changes.
Here are some examples of what Rand Paul has gotten through committee:
The Fourth Amendment Restoration Act is an effort to prevent US government agencies from searching Americans' phone records without a warrant based on probable cause.
The National Right-to-Work Act, would repeal existing law in efforts to reduce the use of coerced union membership as a condition of employment.
The Separation of Powers Restoration and Second Amendment Protection Act essentially tells the President that Congress will not accept any executive orders, signing statements, or expenditures of federal funds on projects or programs not appropriated to the executive branch.
The Default Protection Act outlines priorities for federal government obligations if the debt limit is reached, including paying the interest and principal on public debt, paying benefits to members of the Armed Forces, and paying Social Security and Medicare.
Aside from getting bills through committee, examining simply the number of bills proposed, Democratic senators and Bernie Sanders (I-VT) took 9 of the 10 top slots, while Vitter, the lone Republican, was first in proposing the highest number of bills. (In the Republican-controlled house, Democrats also took a higher share of the top slots with 7 of the top 10 bill proposers compared to 3 in 10 being Republicans.)
The post Brookings Moneyball Scores: Ted Cruz Most Efficient Senator, Ron Wyden and Rand Paul Most Effective appeared first on Reason.com.
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